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United States v. Thomas

United States Court of Appeals, Eighth Circuit

November 10, 2016

United States of America Plaintiff-Appellee
v.
Stephen Thomas Defendant-Appellant

          Submitted: September 23, 2016

         Appeal from United States District Court for the Southern District of Iowa-Des Moines

          Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

          MURPHY, CIRCUIT JUDGE.

         Stephen Thomas pled guilty to conspiracy to possess fifteen or more counterfeit access devices and conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, possession of fifteen or more counterfeit devices, in violation of 18 U.S.C. § 1029(a)(3), and false statements to a federal official, in violation of 18 U.S.C. § 1001(a)(2). The district court[1] sentenced Thomas to 80 months imprisonment, and he appeals. We affirm.

         I.

         From 2014 to 2015, Thomas was a member of a group of four individuals who obtained gift cards and credit cards embossed with the names of three group members and encoded with stolen information. With the cards the group conducted fraudulent global cash access (GCA) transactions at casinos. In such transactions cash advances are obtained on credit cards at casino kiosks and the receipts are converted into cash by a casino cashier. The group also used such fraudulent cards at restaurants and retail stores. In November 2014, Thomas and Robert Foust traveled to the Ameristar Casino in Council Bluffs, Iowa. During that trip Foust fraudulently obtained $370 through a GCA transaction. Over the next three months the group was involved in over $28, 000 of attempted or completed fraudulent transactions at four casinos and at a Walmart.

         On February 16, 2015 a hotel employee in Bloomington, Minnesota notified law enforcement that there was a suspicious male, later identified as Thomas, using numerous prepaid credit cards to pay for his room. When Bloomington police officers made contact with Thomas, he provided them with a false name and driver license which prevented them from discovering his outstanding arrest warrant for a 2009 escape from federal prison. The officers were granted entry to Thomas' hotel room and searched his person but did not make any arrests. Officers later found 30 fraudulent cards in the hotel embossed with the names of the other three people in Thomas' group.

         Three days later law enforcement identified a suspicious piece of mail addressed to Foust at the Econo Lodge Inn and Suites in Des Moines, Iowa. When Foust was confronted, he gave the officers consent to search a package in which 50 fraudulent cards were discovered. Foust thereafter consented to a search of the room he had been sharing with four others, including Thomas. Law enforcement found 82 fraudulent cards in their hotel room and 18 fraudulent cards in a rental van that the group was using.

         Thomas was indicted and later pled guilty to conspiracy to possess fifteen or more counterfeit access devices and conspiracy to commit mail fraud, possession of fifteen or more counterfeit devices, and false statements to a federal official. At sentencing the district court determined that his base offense level was 14 under USSG § 2B1.1 because the loss amount was over $95, 000. Six levels were added because the offense involved ten or more victims, sophisticated means were used, and Thomas possessed five or more fraudulent forms of identification. See USSG §§ 2B1.1(b)(2)(A)(i), (b)(10)(c), (b)(11)(C)(ii). The court added four additional levels after finding under USSG § 3B1.1(a) that Thomas was "an organizer or leader of a criminal activity that involved five or more participants." Two more levels were added after finding that Thomas had willfully obstructed justice by providing false identification to the Bloomington police on February 16. See USSG § 3C1.1. A total offense level of 23 was reached after three levels for acceptance of responsibility were subtracted. See USSG § 3E1.1.

         Thomas was assigned a criminal history category of four because his record included 1999 convictions for possession of a counterfeit credit card and unlawful possession of a controlled drug. Since he had been sentenced for those offenses in January 2000, the district court counted them because they had been imposed within fifteen years of the commencement of his current offense. See USSG § 4A1.2(e)(1). This produced a guideline range of 70 to 87 months, and the court sentenced him to 80 months. Thomas appeals.

         II.

         Thomas first argues that the district court erred by increasing his base offense level by eight under USSG § 2B1.1 after finding that the total loss amount attributable to him exceeded $95, 000. He and his codefendants had completed over $26, 000 of fraudulent transactions and attempted to complete $2, 000 more. Law enforcement found 180 unused fraudulent cards in the group's possession, and the district court attributed $500 to each of these unused cards. See USSG § 2B1.1 cmt. n.3(F)(i). The total loss amount exceeded $95, 000. Thomas argues that the court erred by including amounts from unused cards possessed by the group.

         We review de novo "a district court's interpretation and application of the sentencing guidelines" and its factual findings for clear error. United States v. Gallimore, 491 F.3d 871, 874-75 (8th Cir. 2007). The loss amount "is the greater of actual loss or intended loss, " USSG § 2B1.1 cmt. n.3(A), and intended loss is the monetary "harm that the defendant purposely sought to inflict, " including "harm that would have been impossible or unlikely to occur, " id. cmt. n.3(A)(ii). The loss amount in "a case involving any counterfeit access device or unauthorized access device . . . includes any unauthorized charges made with ...


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